<\/p>\n
1. Plurality of techniques which give concrete form to the Compliance Obligation, convergence towards the Monumental Goals of Compliance Law<\/em><\/span><\/strong>\u270f\ufe0f\ud83d\udd8d\ufe0f\ud83d\udd8a\ufe0fThere is often a dispute about the very definition of what Compliance Law is, but there is a clear sense of the scale and force of the obligation which results from it for the companies subject to it. It remains difficult1<\/a><\/sup>\ud83d\udd74\ufe0f<\/span>M.-A. Frison-Roche<\/a>, \ud83d\udea7<\/span>Conceiving power<\/a>, 2021.<\/span>. First and foremost, however, we must not to be overwhelmed by the multiple technical obligations through which the Compliance Obligation takes shape, such as the obligation to map, to investigate, to be vigilant, to sanction, to educate, to collaborate, and so on. Not only this is a very long list, but it is an open-ended one, with companies themselves and judges adding to it as companies, sectors and cases2<\/a><\/sup>\ud83d\udd74\ufe0f<\/span><\/span>M.-A. Frison-Roche<\/a>, \ud83d\udcdd<\/span>Conceiving the Compliance Obligation: Using its Position to take part in achieving the Compliance Monumental Goals<\/a>, in<\/em> \ud83d\udd74\ufe0f<\/span><\/span>M.-A. Frison-Roche (ed.), \ud83d\udcd8<\/span>Compliance Obligation<\/a>,<\/em> 2024.<\/span>.<\/p>\n Nor should we be led astray by the distance that can be drawn between the contours of this Compliance Obligation, which can be as much the result of a will, a generous feeling for a close or distant Other in space or time, or the result of a calculation. This plurality does not pose problem if we do not concentrate all our efforts on distinguishing these secondary obligations from one another but on measuring what they are the implementation of, this Compliance Obligation which ensures that entities, companies, stakeholders and public authorities, contribute to achieving the Goals targeted by Compliance Law, Monumental Goals which give unity to the Compliance Obligation. Thus unified by the same spirit, the implementation of all these secondary obligations, which seem at once disparate, innumerable and often mechanical, find unity in their regime and the way in which Regulators and Judges must control, sanction and extend them, since the Compliance Obligation breathes a common spirit into them.<\/p>\n <\/p>\n 2.<\/strong><\/span> Plurality of what produces the Compliance Obligation, convergence towards the Monumental Goals of Compliance Law<\/strong><\/em><\/span> \u270f\ufe0f\ud83d\udd8d\ufe0f\ud83d\udd8a\ufe0fSo, In the same way that the multiplicity of compliance techniques must not mask the uniqueness of the Compliance Obligation, the multiplicity of sources must not produce a similar screen. Indeed, the Legislator has often issued a prescription, an order <\/strong>with which companies must comply, Compliance then often being perceived as required obedience. But the company itself expresses a will that is autonomous from that one of the legislator, the vocabulary of self-regulation and\/or ethics <\/strong>being often used in this case, because it affirms that company devotes forces to taking into consideration the situation of others when it would not be compelled to do so, but that it decide to de so because it cares about them. However, the management of reputational risks and the value of bonds of trust, or a suspicious reading of managerial choices, leads us to say that all this is merely a calculation<\/strong>.<\/p>\n <\/p>\n 3. The contribution to the Monumental Goals, the result of a will, heartfelt<\/em><\/span><\/strong> and calculation <\/em><\/span><\/strong>\u270f\ufe0f\ud83d\udd8d\ufe0f\ud83d\udd8a\ufe0fWe can observe the Wills that have shaped the Compliance Obligation over time, to which is added an heartfelt impulse that should not be scoffed at, because it is also in this impetus that we can find the strength that is required to serve the ambitions for the future served by Compliance Law, without, however, underestimating the part played by the many calculations that each of us makes in order to take advantage of this new branch of Law so that the Obligation costs us as little as possible and yields us as much as possible.<\/p>\n <\/p>\n 4. Construction of the contribution<\/span><\/strong> \u270f\ufe0f\ud83d\udd8d\ufe0f\ud83d\udd8a\ufe0f Thus, in order to understand the Compliance Obligation, it is necessary to recognise the part played by all these three sources. In monitoring the proper performance of technical compliance obligations by Managers, Regulators and Judges, insofar as they implement the Compliance Obligation, it is pointless to limit oneself to a single source or to rank them abruptly in order of importance. The Compliance Obligation is part of the very definition of Compliance Law, built on the political ambition to achieve these Monumental Goals of preserving systems – banking, financial, energy, digital, etc. – in the future, so that human beings who cannot but depend on them are not crushed by them, or even benefit from them. This is the teleological yardstick against which the Compliance Obligation is measured, and with it all the secondary compliance obligations that give it concrete form, whatever their source and whatever the reason for adopting the initial standard. The Compliance Obligation is born of a will, that of the legislator, supported by that of the company subject to it (I<\/strong><\/span>). It is also the result of what might be called a 'heartfelt impulse' because, in Europe at least, it is indeed concern for others, even if they are far away in space and time, that underpins this desire to make sustainable systems that should benefit human beings and not the other way round (II<\/strong><\/span>). This does not contradict the calculation that each of us must make about the benefits of participating in this great future of Compliance (III<\/strong><\/span>).<\/p>\n <\/p>\n I. THE WILLS SHAPING THE COMPLIANCE OBLIGATION<\/strong><\/span><\/p>\n 5. Initially, the will of the Legislator, a sometimes illegitimate manifestation of his arbitrary power<\/em><\/span> <\/strong>\u270f\ufe0f\ud83d\udd8d\ufe0f\ud83d\udd8a\ufe0fThe first will to impose itself is that of the Legislator. It has never been so forcefully asserted than today. Both spatially, since we never cease to speak of "extraterritoriality", the American legislator in particular throwing a law that concerns his interests beyond his territory in front of all the other legislators, which triggered a feeling of injustice, aggression, or even an act of war, particularly on the part of the other legislators affected by their feeling of sovereignty\ud83d\udcce3<\/a><\/sup>\ud83d\udd74\ufe0f<\/span>R. Gauvain, \ud83d\udcd3<\/span>Rétablir la souveraineté de la France et de l'Europe et protéger nos entreprises des lois et mesures à portée extraterritoriale <\/em>(Restore France Sovereignty and Europe and protect our companies from extraterritorial laws and measures<\/em>)<\/a>, report asked by the French Prime Minister Edouard Philippe, Assemblée Nationale <\/em>(French National Assembly), June 2019, 102 p., so-called "Gauvain report"; this report is mainly based on American Compliance legislation, in particular the FCPA<\/em>.<\/span>,<\/p>\n It is understandable that this act, which consists of a State issuing legislation to defend its own interests by imposing it on other States which do not necessarily share the same interests, has been qualified negatively, Compliance Law being taken as the expression of the Will of one State over the others, of the most powerful, here the United States, against all the others, which have become vassals.<\/p>\n This protest of principle, which is understandable on the part of the other States thus summoned to collaborate or face sanctions, is equally understandable on the part of companies, because it is in the same way that they receive the injunction to obey from a legislator, whose jurisdiction they may not be under, for example when they are European firms and it is a question of an American Law concerning facts and persons with no relation to American territory\ud83d\udcce4<\/a><\/sup>Hypothèse à laquelle correspond le "cas BNP" et le "cas Alstöm" ; voir plus techniquement.....<\/span>.<\/p>\n These criticisms are well-founded when the tools of Compliance are used by Judges or Regulators to monitor, order and punish actors who are nevertheless outside theirs jurisdiction, in a common law sense of this word for no other reason than to serve the own interests of the author of the norm, for example the effectiveness of a blockade that the State issuing the norm has decided on or international sanctions that it has taken to punish a State that has opposed it. <\/p>\n <\/p>\n 6. The legitimate will of the Legislator based on the objective globality of the situation which is the subject of the Compliance Obligation<\/em><\/span><\/strong> \u270f\ufe0f\ud83d\udd8d\ufe0f\ud83d\udd8a\ufe0f But a completely different situation is constituted when it is a question of having control over a situation which, in fact, is global, for example forests which are devastated by fires or catastrophic felling because these forests supply the globe with oxygen and they require time for their reconstitution requires time\ud83d\udcce5<\/a><\/sup>Sur le Règlement européen contre la déforestation et l'incitation violente que le Législateur utilise, à savoir l'interdiction d'entrée sur le territoire de l'Union es produits issus de la déforestation, voir ....<\/span>. Therefore, it is appropriate to speak of "Global Law", because the object itself is global and it is a necessity to adopt global legislation imposing effective solutions today to preserve the future in order to provide solutions, international treaties only producing this effect with great difficulty, not being worth a "Global Legislator"\ud83d\udcce6<\/a><\/sup>Sur la difficulté pour les traités internationaux de faire office de "législateur global", notamment parce que les traités internationaux non seulement ne s'imposent pas de jure <\/em>partout mais sont souvent de facto <\/em>peu effectifs, la question des océans ou de l'arctique étant une illustration de cela : ..... <\/p>\n 7. The legitimate Will of the Legislator based on the political ambition of a consideration for a distant Other<\/em><\/span><\/strong> \u270f\ufe0f\ud83d\udd8d\ufe0f\ud83d\udd8a\ufe0f But when the so-called French "Vigilance" law was passed in 2017\ud83d\udcce7<\/a><\/sup>French law No. 2017-399 of 27 March 2017 relative au devoir de vigilance des sociétés mères et des entreprises donneuses d'ordre (on the duty of vigilance of parent companies and ordering firms<\/em><\/a>; see \ud83d\udd74\ufe0f<\/span><\/span>M.-A. Frison-Roche<\/a>, \ud83d\udea7<\/span>Duty of vigilance: the way forward<\/a>, 2024, and the technical references cited, particularly with regard to the European directive of 13 June 2024<\/a>.<\/span>, it was not just a matter of responding to an objectively global situation, namely the environment and above all the climate, it was also a matter of the legislature imposing its Will on parent companies or principals so that they prevent, or detect in order to put an end to, human rights abuses in the value or activities chains they have put in place. This is no longer an imperative dictated by the situation, because the future may continue to unfold in a world where human rights are not respected over the majority of its surface. But the French legislature, and now the European legislature too through the Directive of 2024\ud83d\udcce7<\/a><\/sup>French law No. 2017-399 of 27 March 2017 relative au devoir de vigilance des sociétés mères et des entreprises donneuses d'ordre (on the duty of vigilance of parent companies and ordering firms<\/em><\/a>; see \ud83d\udd74\ufe0f<\/span><\/span>M.-A. Frison-Roche<\/a>, \ud83d\udea7<\/span>Duty of vigilance: the way forward<\/a>, 2024, and the technical references cited, particularly with regard to the European directive of 13 June 2024<\/a>.<\/span>, are determined to take an interest in what happens to human beings far away, so that this does not happen in the future: almost every study describing the genesis of the 2017 law begins with a reminder of the Rana Plaza disaster8<\/a><\/sup>\ud83d\udd74\ufe0f<\/span>S. Schiller, \ud83d\udcdd<\/span>Exégèse de la loi relative au devoir de vigilance des sociétés mères et entreprises donneuses d'ordre<\/a>, 2017 ; \ud83d\udd74\ufe0f<\/span>G. Delalieux, \ud83d\udcdd<\/span>La loi sur le devoir de vigilance des sociétés multinationales : parcours d’une loi improbable<\/a>, 2020.<\/span>. <\/p>\n <\/p>\n 8. The difference in the state of the legislative Will depending on whether it expresses pure power, whether it takes account of the present or anticipated state of the world, or whether it articulates a global political ambition<\/em><\/span><\/strong> <\/em><\/span>\u270f\ufe0f\ud83d\udd8d\ufe0f\ud83d\udd8a\ufe0f It is clear from the foregoing that the Will of the Legislator thus creates an obligation of compliance on the part of the State, on other States, including those outside its 'jurisdiction', and companies, including in this same extraterritorial deployment, either through a phenomenon of pure power, which sovereignty is sometimes – wrongly – criticised for\ud83d\udcce9<\/a><\/sup>The relationship between Compliance Law and Sovereignty will not be developed here. For more information, see the Chapter V. "The Principle of Active Systemic Proximity: Corollary of the Renewal of the Principle of Sovereignty by Compliance Law" of the book <\/em>\ud83d\udd74\ufe0f<\/span><\/span>M.-A. Frison-Roche<\/a> (ed.), \ud83d\udcd8<\/span>Compliance<\/em> Monumental Goals<\/em><\/a>, 2023.<\/span>, or by the observation of a situation from which the Legislator is content to draw the technical consequences, or by a global and argued political ambition. Looking at this trilogy, the question that comes to mind is: why only now?<\/p>\n <\/p>\n 9. Why now? Newly global systems; newly political awareness <\/em><\/span><\/strong>\u270f\ufe0f\ud83d\udd8d\ufe0f\ud83d\udd8a\ufe0f What seems to be a "reawakening" of Compliance is primarily due to the systems mechanism. In fact, it is because in the United States the 1929 crisis, the origin of which is rooted in systemic financial dysfunction, justified the construction of the first Compliance Law to prevent such a crisis from recurring, while in Europe the crisis in the constitution of computer files on individuals justified a second Compliance Law, partly identical in nature and partly different from its American precedent\ud83d\udcce10<\/a><\/sup>On this double movement, that explains the convergences and divergences between European Compliance Law and American Compliance Law, see \ud83d\udd74\ufe0f<\/span>M.-A. Frison-Roche<\/a>, \ud83d\udcdd<\/span>Compliance : avant, maintenant, après <\/a><\/em>(Compliance: before, now, after)<\/a>, in<\/em> \ud83d\udd74\ufe0f<\/span>N. Borga, \ud83d\udd74\ufe0f<\/span>J.-Cl. Marin and \ud83d\udd74\ufe0f<\/span>J.-Ch. Roda (ed.), \ud83d\udcd5<\/span>Compliance : l'entreprise, le régulateur et le juge <\/em>(Compliance: the Company, the Regulator and the Judge)<\/a>, 2018. But it may be a question of a new political awareness in the face of something that already exists. Legislators, by definition, have the right to take sides. For example, to mobilise companies so that human beings are effectively in a situation of equality when the de facto<\/em> situations do not lend themselves to it. <\/p>\n The reaction to these two types of Will will not be the same, and the order given by the Legislator will not be the same, because the Legislator's Will is more imposing in the first case, which can be based on the nature of things, than in the second (about human rights), for which the Legislator, however sovereign, will have to convince in order to be followed. The theory of incentives should find its place to a greater extent in this perspective.<\/p>\n This is why Digital Compliance Law could be closer to Climate Compliance Law, since they aim to ensure the technical sustainability of the system, i.e. that its constituent pillars do not disappear, whereas the promotion of human rights, however laudable, will require other methods. <\/p>\n Looking at the art of the writing of laws and regulations and observing their implementation, it is not certain that this duality was taken into consideration by the authors of the texts, even though the effectiveness of the latter is a more acute criterion in Compliance Law than in other branches of Law, since it is in the Goals to be achieved that the law's normative force is anchored. This is also due to the fact that it is not always easy to distinguish between the two hypotheses: this is particularly true of the compliance obligation imposed on companies that have built up value chains.<\/p>\n <\/p>\n 10. The difficulty of distinguishing between the novelty of situations to which the Legislator is responding and an autonomous political ambition: the case of value chains<\/em><\/span><\/strong> <\/em><\/span>\u270f\ufe0f\ud83d\udd8d\ufe0f\ud83d\udd8a\ufe0fIndeed, the value chain is an organisation chosen by the company to improve its performance in relation to its competitors: Rather than go for multiple instant contracts available through the pollicitation of the competitive market, the company chooses to structure itself not only internally but also externally by making its supply chain solid through long-term contracts and structuring all kinds of services it needs. The contract is thus a construction tool\ud83d\udcce12<\/a><\/sup>Which leads to the vast and essential topic: \ud83d\udd74\ufe0f<\/span>M.-A. Frison-Roche<\/a> (ed.), \ud83d\udcd8<\/span>Contrat<\/em> and Contract<\/em><\/a>, 2025.<\/span> by which the company builds an alternative to two models: the competitive market, which is too fickle, and vertical integration, which is too rigid. It is therefore the company's intention to create this situation in order to increase its chances of winning out over its competitors.<\/p>\n But the factual situation that this produces is so structuring that the Legislator may wish to intervene in the two ways previously identified (objective reaction to a state of the world; political reaction). Firstly, the global economy has been transformed by these structural chains of activities, which are very similar to essential infrastructures and which must not collapse because it is often on them that supply works and national industries are based, which leads us to preserve the downstream, in particular contractual power. Today, therefore, they are part of an objective state of the world, which was not the case when the very notion of the value chain was developed in 1985.<\/p>\n However, the political Will is very strong since the texts do not concern the downstream part of the chain, served by the contract technique, but the downstream part, with the suppliers of materials, goods and services being protected by the Compliance Obligation which weighs on the master operator of the chain, who must ensure, through Vigilance, the sustainability of the whole and the protection of those who live in it, which corresponds exactly to the definition of Compliance Law, of which Vigilance is there fore the advanced point\ud83d\udcce13<\/a><\/sup>See for instance, \ud83d\udd74\ufe0f<\/span>M.-A. Frison-Roche<\/a>, \ud83d\udea7<\/span>Thinking and using Vigilance through its Compliance Monumental Goals<\/a>, 2023.<\/span>.<\/p>\n The more companies that have chosen to build their model on these chains will not only accept the objective goal of ensuring their sustainability, which they accept quite readily and therefore appreciate the English wording of the Directive of 13 June 2024 (Corporate Sustainability Due Diligence Directive – CS2D<\/em>) more than the French wording (Directive sur le devoir de vigilance des entreprise en matière de durabilité<\/em>), but will also take on board the more political goal of protecting the human beings who depend on these structured chains thus constructed. They can then add their own political Will to that of the Legislator. We just mention this perspective because this is the subject of another contribution: "Obligation on Obligation is relevant"\ud83d\udcce!14<\/a><\/sup>\ud83d\udd74\ufe0f<\/span><\/span>M.-A. Frison-Roche<\/a>, \ud83d\udcdd<\/span>Compliance Obligation, between Will and Consent: obligation upon obligation works<\/a>, in<\/em> \ud83d\udd74\ufe0f<\/span><\/span>M.-A. Frison-Roche<\/a> (ed.), \ud83d\udcd8<\/span>Compliance Obligation<\/a>,<\/em> 2024.<\/span>.<\/p>\n <\/p>\n 11. The legislator's Will leaving it up to the companies to choose the means to achieve their legal Compliance Obligation<\/em><\/span><\/strong> \u270f\ufe0f\ud83d\udd8d\ufe0f\ud83d\udd8a\ufe0f Even if we remain in a unilateral relationship between the Legislator's Will, which orders the company to use its position to achieve the Monumental Goals by which Compliance Law defines itself, the company subject achieving its Compliance Obligation in this way\ud83d\udcce15<\/a><\/sup>On this aspect of the Compliance Obligation definition, \ud83d\udd74\ufe0f<\/span><\/span>M.-A. Frison-Roche<\/a>, \ud83d\udcdd<\/span>Conceiving the Compliance Obligation: Using its Position to take part in achieving the Compliance Monumental Goals<\/a>, in<\/em> \ud83d\udd74\ufe0f<\/span><\/span>M.-A. Frison-Roche (ed.), \ud83d\udcd8<\/span>
\r\n\r\nOn the complex relationship, to say the least, between the Compliance Obligation and the resulting conflict of laws technique, see \ud83d\udd74\ufe0f<\/span>L. d'Avout, \ud83d\udcdd<\/span>Compliance and conflict of laws. International Law of Vigilance-Conformity, based on recent applications in Europe<\/a>, in<\/em> \ud83d\udd74\ufe0f<\/span><\/span>M.-A. Frison-Roche<\/a> (ed.), \ud83d\udcd8<\/span>Compliance Obligation<\/a>,<\/em> 2024.<\/span>.<\/p>\n
\r\n\r\nThis is also true for their respective spearheads which are European Vigilance Law and American Vigilance Law, the former being much more focused on the direct protection of individuals, while the latter is built around informing them, leaving them to defend their interests.<\/span>. Today, Compliance Law is taking on an unprecedented scope, not only because finance has pulverised space and time through the digitalisation of the world\ud83d\udcce10<\/a><\/sup>On this double movement, that explains the convergences and divergences between European Compliance Law and American Compliance Law, see \ud83d\udd74\ufe0f<\/span>M.-A. Frison-Roche<\/a>, \ud83d\udcdd<\/span>Compliance : avant, maintenant, après <\/a><\/em>(Compliance: before, now, after)<\/a>, in<\/em> \ud83d\udd74\ufe0f<\/span>N. Borga, \ud83d\udd74\ufe0f<\/span>J.-Cl. Marin and \ud83d\udd74\ufe0f<\/span>J.-Ch. Roda (ed.), \ud83d\udcd5<\/span>Compliance : l'entreprise, le régulateur et le juge <\/em>(Compliance: the Company, the Regulator and the Judge)<\/a>, 2018.
\r\n\r\nThis is also true for their respective spearheads which are European Vigilance Law and American Vigilance Law, the former being much more focused on the direct protection of individuals, while the latter is built around informing them, leaving them to defend their interests.<\/span>, this globalisation being of a different nature to the mondialisation of the exchange of goods\ud83d\udcce11<\/a><\/sup>\ud83d\udd74\ufe0f<\/span>M.-A. Frison-Roche<\/a>, \ud83d\udcdd<\/span>Le droit des deux mondialisations<\/a>, in <\/em>Archives de Philosphie du Droit (APD), \ud83d\udcd7<\/span>La mondialisation, entre illusion et utopie<\/em><\/a>, 2003 ; \ud83d\udcdd<\/span>La mondialisation du point de vue du Droit<\/a>, in<\/em> Association Henri Capitant, \ud83d\udcd7<\/span>La mondialisation<\/em><\/a>, 2017.<\/span>, but also because new global systems have emerged with such unprecedented interdependence and speed of effect that they must be considered as new by nature, as digital space, or new by a first global crisis as climate space. These new systems bring with them new systemic risks, such as the radical risk of extinction, including of democracy (digital space) or the human race (climate space).<\/p>\n